The federal government’s plan to let cabinet decide whether convicted criminals serving life without parole should get exceptional release is “unprecedented” and will see legal challenges, an Ottawa constitutional lawyer predicts.

Prime Minister Stephen Harper announced the pending legislation Wednesday afternoon in Toronto. It would eliminate parole eligibility for those convicted of certain murders and high treason — including terrorism. It also would give the courts discretion to impose a sentence of life without parole on any other first-degree murder case, and grants cabinet the power to rescind a life-without-parole sentence on application from an offender.

“The fact that there’s a political remedy through cabinet would not be sufficient to justify the constitutional violation, because that’s not how we remedy constitutional violations. They have to be remedied through judicial means,” said Carissima Mathen, a constitutional and criminal lawyer currently teaching at the University of Ottawa. “I would expect to see a charter challenge.”

Mathen says the legislation is in line with how pardons are processed now — in that a pardon comes from the government, not the justice system. What the bill would do is inject a new element of politics into sentencing, making the decision on whether to release an offender from prison inherently political rather than judicial.

The federal government says the legislationwould allow for victims’ families to give input on whether an offender should be released.

Mathen said nothing like this law has ever been proposed in the Canadian criminal justice system — and people should be worried.

“It’s the removal of any discretion from the criminal justice system and placing it in a purely political body, with no possibility of review, like we have with respect to pardons but it’s very different from a pardon because pardons are extrajudicial,” she said. “Nobody’s entitled to a pardon and that is seen as a purely political decision but the decisions about the conditions of someone’s sentence is not supposed to be made in an ad hoc political setting.

“We generally — for good reason — entrust decisions about punishment either to judges or once the punishment is imposed to expert bodies like the Parole Board.”

The Liberal justice critic, Sean Casey, says there are a lot of questions that can’t be answered about the move until a bill is tabled in Parliament but that it’s interesting to stack the government’s proposal against their opinion of the role of elected officials last week.

“Last week we heard that parliamentarians weren’t the right body to oversee our national security agency and the necessary checks and balances rested with the judiciary,” he said. “Today, we’re hearing that the release of the most dangerous offenders is one that should rest with our elected officials and not with the judiciary or with a specialized body. Quite frankly, it’s confusing.”

Casey told iPolitics that while he doesn’t think putting release power in the hands of the cabinet would directly impact a lot of people, it’s troubling for the broader implications it could have on the Canadian criminal justice system.

“If this is the thing edge of the wedge, that we’re going to start taking powers away from the Parole Board and away from the judiciary and putting them in the hands of elected officials, I’m extremely concerned about the implications for the rule of law.”